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tv   Key Capitol Hill Hearings  CSPAN  June 5, 2014 6:00am-8:01am EDT

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>> thank you very much, senator. the next witness, mr. floyd abrams, senior partner at the law firm cahill, gordon, and reindel in new york, not a stranger to this committee over the years. mr. abrams, please go ahead.
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>> thank you, senator leahy. appreciate your invitation to appear here today. the description of the constitutional amendment that is before you today states in its text edit quote relates to the contributions and expenditures intended to affect elections, unquote. that's one way to safety. i think it would've been more defeat revealing to say that it actually relates to speech intended to affect elections. i think it would be even more accurate to say that it relates to limited speech intended to affect elections, and that's the core problem with it. it is intended to limit speech about elections and it would to just adapt. to start at the beginning, this has been said before, it is worth repeating, no ruling providing first amendment protection has ever been
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reversed by a constitutional amendment. no ruling by the supreme court, no speech that the supreme court has concluded warranted first amendment protection has ever been transformed i a constitutional amendment into becoming unprotected speech, and thus subject to criminal sanctions. think about we protect under the first amendment. chief justice roberts in the mccutcheon opinion reserve -- observed that it may be repugnant to some but so, too, does most of the, much of what the first amendment vigorously protects. at the first amendment protects flagburning, funeral protests and not see parades, despite the profound offense that such spectacles cause, it surely protects political campaign speech despite popular opposition. the proposed amendment before you today deals with nothing except political campaign
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speech. it does not deal with money that is spent for any other purpose other than persuading people who to vote for or against. and as such it would limit speech that is at the heart of the first amendment. and the fact that the amendment is proposed in the name of equality makes it no less threatening. the supreme court observed, i think, with particular precedents in the buckley case an opinion joined by great liberal jurists, justice brennan, justice marshall, justice potter stewart, stalwart defenders of the first amendment, but the concept the government may restrict some elements, may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the first amendment. it is that view, however, which is at the core of this amendment
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which would reverse the buckley case as well as citizens united. this amendment is not a citizens united amendment. it goes way back to the 1970s, and it would reverse buckley's ruling as well that independent expenditures are protected by the first amendment. the title of the proposed amendment goes even further. it says that it would restore democracy to the american people. i'm willing to pass over in silence the rhetorical overkill about what democracy means, but the notion that democracy would be restored, saved by limiting speech is a perversion of the english language. it is inconsistent with any notion of democracy to say that the way to accomplisaccomplis h it is to limit speech. so let me say in the most direct
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manner that it is deeply, profoundly, obviously undemocratic to limit speech about who to elect to public office. the other pervasive problem for the amendment that it is rooted in the disturbing concept that those who hold all in federal and state legislatures armed with all the bandages of incumbency may effectively prevent their opponents from becoming known as a result of spending money to put ads on describing who they are. i just conclude with this thought. it's not a coincidence that intel debate the first amendment has never been amended. it's not a coincidence that no decision of the supreme court affirming first amendment writes has ever been overruled by constitutional amendments. motions -- emotions ar have run high before but decisions of the court which provided higher levels of liberty than members
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of this body thought was appropriate. self-restraint one the day. i urge that self-restraint when the day today. thank you. >> thank you, mr. abrams. next witness is jamie raskin, professor us can teaches constitutional law, legislation and first amendment to american university's washington college of law here in washington, d.c. if that's enough to keep them busy also serves as a sender in the maryland state legislature. so professor raskin, welcome. >> thank you very much, mr. chairman. delighted to be with you. we built two walls to protect american democracy. first is jefferson's wall of separation between church and state which protects the religious realm in a nation free from bureaucracy. the other is the while we built brick by brick in statute over a century to separate through credit money from democratic politics. starting with 1907 been on
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corporate contributions in federal races, which still stands, we worked to wall off the vast corporate wealth and personal fortune from campaigns, defying the electoral arena as a place of equality. at four years ago in citizens united bitterly divided court bulldozed a major block of the wall. the one they get trillions of dollars in corporate wealth from flowing into our campaign. three years ago in arizona free enterprise club the same five justices struck down public financing programs that use matching funds to amplify the voices of poorer candidates competing to be heard over the roar of big money. in a world gone topsy-turvy, justice kagan wrote in dissent the majority traditional campaign speech and electoral competition as the first amendment entry instructed him to state law that expands public debate and provides more voices wider discussion and greater competition. this year, in the catching, the same five took a sledgehammer to aggregate conservation limit and our tycoons to max out to every
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member of congress and all of their opponents, after five have a decision like these the walls are crumbling or if we keep waiting around the last few bricks will be removed soon including contribution limits, the ban on corporate contribution rules against courtney buck expenditures in the 10 states have on writing campaign checks and legislation to all of them at odds with the are willing dogma of five justices that money is speech, corporations are people, and to identify corruption he got to find a bride. it will enable us to protect democratic politics and free market economics. in politics we need to revive democratic self government weree all voices can be heard and not drowned out why billionaires who turn up the volume on their soundtracks to be splitting levels and ceos write checks with other people's money as justice brandeis called. in economics we need to strengthen businesses that
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practice free market competition and pull the plug on rent seeking corporation has been freely on campaigns now to obtain tax breaks, sweeter deals and public subsidies later. out of smithfield on his competition entered industry capture of government would tell us in campaign finance las vegas and fear. when justices go the went on cnn and defenses and united invoke everyone's favorite soundbite i think thomas jefferson would've said more speech the better. but the sage of monticello never equated operation with the citizens and the voiced dread at the prospect of plutocracy. he warned future generations not to embrace a quote splendid government of an aristocracy founded on banking institutions and money and corporation, writing is ruling over the -- this nightmare vision sounds a lot like the citizens united error, the vast maturity of americans are appalled. 80% opposed since he died in unlimited spending. 74% of voters in colorado and
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montana voted to call for this amendment. 79% of the people favor limits on campaign money. this amendment protects our power to set limits, not by creating perfect equality. billion as well as of greater resources but by issuing the ritual at least and have it the same polity as nurses, businesses and small people. it's one thing to do middle-class citizens that it's a 5000 the occupation, a skill of 51. quite another to go up against $5 million contribution works picture, the scale of 50,000 to one. a regime like that is plutocracy, not democracy. i think the and it should more clearly empower the people to wall off campaigns from corporate treasury wealth which is then seen as a parent to democracy for more than a century. this is no assault on the first amendment because citizens united did not increase the rights of a single citizen to express his or her views.
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it confers power on ceos to write checks on the corporate treasury accounts for political campaigns. without a vote of shareholders and without notice to the shareholders. this has nothing to do with increasing free speech of the people and everything to do with increasing the power of the ceos over the people. if we do nothing now, pretty soon people will no longer govern the corporations. the corporations will govern the people. at times like this when the court has under by democracy we have amended the constitution. we did it with the disenfranchisement of women and when the court upheld poll tax of the most of the bill of rights to strengthen the progress of democratic self-government and expanded the political rights of the people. even as the defenders of any called it protested the rights are being violated. don't be intimidated. the people are with you. >> thank you, professor raskin. let me begin in my time and then i will turn the gavel over to senator durbin, of course will
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be followed by senator grassley. senator mckissick, the story of her constitution has been one of progressive inclusion as i read it. in fact, our founding fathers believed only white land owners should be allowed to purchase but in our elections. each generation of america has been expand on our -- our march towards a more perfect union. we amended the constitution many times to ensure our representatives of democracy, 14th and 15th amendments, for example, they transform the constitution, guaranteed equal protection of the law for all americans, and they prohibited the freedom of the right to vote on the basis of race. the 17th amendment gave americans a right to elect senators of their choosing. because there was a concern that corporations were corrupting our state legislature, so they would
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elect senators who would beholden to those corporations. continue with the 19th amendment, the right to vote for women. the civil rights act of 1964, the voting rights act of 1965, 20 sixth amendment extension to extend the vote to young people. i mention all those because they mark progress on the path of the inclusion, to make our country more representative. i fear these supreme court decisions have reversed that course. you are a follower of the civil rights. do you believe the unprecedented money that follows a state races in the wake of citizens united more represent state government in north carolina?
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>> it has absolutely not led to more representative gohmert -- government in north carolina at all. the will of the people in the state of north carolina is not being heard, everything that's represented by the demonstrations which have occurred in our state, started of with five of people coming every monday when we convene our sessions, protesting many of these policies that have been implement it. they grew to masses of 7500 people. to close to 1000 people arrested. the cost was absolutely -- to the policies that were coming out of raleigh. these were actions that not only impacting the voting rights for individuals. if you would poll people about these voters laws that were passed and asked them whether they like the early vote period, we've eliminated now when we go that early vote. in 2008 we had over 7000 people vote that first week. by the time 201210, 900,000
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people voting, people also the right to do same-day voter registration when they came in for early voting. there were people getting, able to preregister at the 17 to so they can vote when they are 18. if you ask the vast majority of north carolinians if you like to vote could come if you like the right to exercise their constitutional privilege in a broader, more expensively, the answer would be resoundingly y yes. >> professor raskin, you've heard some characterize the you don't amendment where considering today as an effort to repeal the first amendment. now, i don't believe it's accurate but i hear it in paid ads and others and i guess some of the billionaires will profit by this, pay for that enough time advertisement, americans may believe it. you're a constitutional law
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scholar. if this proposed constitutional men were to be ratified what it repeal the first amendment? >> of course not. the first thing we have to remark is this is united case did not endow a single individual with any right to speak that it ignored have. all the employees of the corporation, all of the members of the board called executives go out and spend whatever they wanted of their own money. all said and should i did was to say that the ceo could take the corporate checkbook and starving checks to put into politics. .co could always spend his own money in politics will be done is we've converted every corporation treasure in the country into the potential political slush fund, let in a deeper sense mr. abrams raises the question about ugly versus valeo, and the rights of not a corporation but the billionaires. in order to spend. there's a very important supreme
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court decision called warda versus rock against racism in 1989 were terrific group called rock against racism would put on concerts in central park what they wanted to crank it all the way up so the preschool couldn't meet in the overclass couldn't meet and of the people who doing of it is the couldn't do it. the central park at first told them they had to turn it down. the supreme court said that's right because you don't have the right under the first amendment to drown out everybody else's picture i think if you understand that case you can understand why the billionaires should not be able to take over all states at north carolina or like montana. i urge everybody to read the findings of the state of montana in that case because what the state described was a history of massive corporate corruption outside of the state to take over their democracy and the panic over spending was an attempt for the people of montana to govern themselves. that's what all this is about, self-government. so democracy is for the people. >> i have further questions
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which i will submit for the record by want to keep the time limits. my time is up and i yield to senator grassley. >> thank you. before ask my first question of mr. abrams, i want to correct something that often goes up in the press, and one of my colleagues have said the same thing today. citizens united said, i mean, the comment was made that citizens united opened the door to millions of dollars in contributions. what citizens united dealt with, and only, was expenditures and has no affect on campaign contributions. esther abrams, last friday on page article washing post wrote quote political nonprofit groups have become a major players in elections since the supreme
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court's 2010 citizens united decision paved the way for unlimited political spending by corporations and unions, end of quote. i know that political nonprofit groups have been active in campaigns for at least 10 years, long before citizens united was decided. my question, am i right in thinking this point made in the "washington post" article as was other outlets is incorrect? >> i would say that i don't think it's correct to say that these groups are playing and enormously greater role than they used to, as you point out. they been around for a while. there's also nothing wrong with them of playing a greater role. the underlying thesis of critics of this is that come at you alerted to the a lot, outside money is bad money, is money
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that shouldn't be a round, shouldn't be allowed. and i reject that and the supreme court has rejected that. on the specific issue of nonprofits, nonprofits don't have to publicly report their spending, except in certain areas. sweethearts know exactly how much more involvement that they have had. >> the or, again, mr. abrams, there are organizations who say they want to influence the money in politics. is that goa both consistent wite first intimate? >> they want to limit the speech that money allows.
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when people complain that is going to be more of this and more of that, or that the speech will contain falsehoods, or the politicians or others will be used in ways that they find uncongenial. what they're really saying is that the money and is doing bad things, and that is, at its core, inconsistent with the first amendment. the first amendment favors speech. it favors more rather than less speech. it favors speech from diverse sources but it rejects the notion that that speech can be constrained or limited because one person has more than another person. all of that comes with the first amendment, and so a general denunciation of money in
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politics is really a denunciation of politics itself and of the public debate that we have in politics. >> my next question deals with a point you made in your opening remarks, and the ascot only in way of to give you an opportunity emphasized what i think is a very important point. supporters of the proposed amendment think it is needed to prevent wealthy donors from dining out ordinary citizens and to restore democracy. could you elaborate on how this position is fundamental at odds with the constitutional protection of free speech? >> yes. when somebody says that my speech will drown out someone else's speech and, therefore, i should say less, it is the functional equivalent of telling a newspaper, you would not have fewer editorials, you really shouldn't spend your space denouncing one candidate for office. it's just not fair. you have too much power. i grew up in a time when
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democrats, adlai stevenson was running against the one party press. every newspaper was republican, just about everyone in those days. no one would've thought that the answer to the so-called one party press was saying the press began to print something or that printing too much, or there's drowning out the opposition. that includes as much speech as one wants. >> i'd like to address my first comment, and question, to professor raskin. we recently invited retired justice john paul stevens to testify before the senate rules committee, which was an exceptional opportunity for us to hear his thinking.
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and he raised some interesting questions about this issue. he said while money is used to finance speech, money is not speech. speech is only one of the activities that is financed by kept campaign contributions and expansion. those financial activities should not receive the same constitutional protection as speech itself. after all, campaign funds were used to finance the watergate burglaries, actions that clearly were not protected by the first amendment. then in closing in his remarks he proffered a sample constitutional amendment on the subject of reversing buckley v. valeo. and i think in an observation that we ought to consider, those of us who support senate joint resolution 19. he suggested we should include the word reasonable when we're talking about limitations on campaign spending. is wasted. i think it was to include the word reasonable to ensure that
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legislators do not prescribe limits that are so low that incumbents have an unfair advantage or the interview with the freedom of the press. do you believe that the word reasonable would be positive addition to the senate resolution? >> i do. it appears in the fourth commitment of course i think would make sense to appear in the 28th and them as well. of course, reasonableness of luck to all of the constitutional amendments and you can find dozens of supreme court cases which is why i found some of the rhetoric a little overheated that this is intend to impose unreasonable limits. but i would take of the problem by inserting the word. or other point about minot equaling speech is a critical point for people to understand. there are lots of forms of purchase and exchange that we criminalize. for example, eying sex. would've said so once to purchase the services of a prostitute, that's just an expression of the speech because when you look at the social meaning and context of use of money in that way is. i think even mr. abrams and the
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people on the other side of this issue take the position that laws against bribery are okay. it's not clear in their position why. after all, i just feel very strongly about an issue and i want to give you $1000 or $1 million to go my way, why should you be able to accept it? i think it's because we believe that we have been in the governmental process and the electoral process that are right reason for those who hold public office to make decisions and there are wrong reasons. a wrong reason is the money that you're going to put in your pocket or huge amount of money you're going to put into your campaign, or lots of spinning that takes place. why can't we take into account the entire social context of money? justice stevens has written of money of course is that speech, money is property. speech has averts and adjectives and nouns and it is what the blossoms called category to mix them up. >> i might say that mr. abrams, you suggested in trying to protect themselves by arguing
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against citizens united. i commended the ability because we offer for those who wished to voluntarily become part of the process a great opportunity for challenges, experts suggest that we currently experience, that they currently have under the law. senator mckissick, one of the things that's been raised consistently is that we ought to let a thousand flowers bloom here and we've been chided saying we're not being good liberals by not expanding this. let me ask you, when it comes to the issue of north carolina and this gentleman, it appears he was responsible for 70% of all outside spending in your state in the year 2010, the 2010 election. instead of really being an open process in north carolina internet to be a very elite situation. elite situation where his wealth gave him more power than the average person living in north carolina to express his luca
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will. could you comment on what is happened to the north to run a political process because of his favoritism towards the elite? >> i think as a result of his capacity to give millions and millions of dollars, he basically tainted the whole election process in many respects because he had influenced substantially disproportionate to the number of people who share his beliefs. when it comes to the political process as we've seen it today, there are many people who feel as if they've been disenfranchised in terms of voting rights come in terms of women's rights. they've got it now and a as a result of legislation that's been adopted to be new ambulatory standards applied to abortion clinics as result of north carolina 16 abortion clinics and all were close except one. they have gone in, prior governors and prior members, speaker of the house, all of
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their terms were shortened so they could go in and point people that share their philosophies. when it comes to public education there was a legislation was passed to reverse the teacher tenure and estate that was challenged in in the courts and found to be unconstitutional, but many majors affecting public education that the vast majority are opposed to that in many respects have now been adopted and then legislate. no limitation in the number of kids in the classroom or 46 in teacher pay in this country. things that are putting north carolina behind, and many of these positions, many of these issues, many things didn't with unemployment compensation. would now rather than giving people 26 weeks we only got 12 to 20 weeks big were the only state in america didn't qualify our residents from receiving long-term unemployment benefits that were eligible for it in gaza $780 million as well with
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the fed to expand medicaid. a lot of things have happened in our state that the passengers of folks are only interested, without agree with the giving of it as result of the amazing level of financial capacity of our folks to give in to influence the outcome of 18 critical races. >> senator cornyn? onstar, senator hatch. >> thank you, mr. chairman. mr. abrams, i'm not the only one who believe that you are the leading first amendment lawyer in the country. and you're not a member of my party. >> that's true, not yet. spent i like the thought. we are very privileged to have you today and we're grateful to have the other witnesses as well. mr. abrams, this is not the first constitutional limit that tries to restrict political speech. this one goes be on what we've seen in the past. as far as i can tell, for example, senator resolution 19
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is the first one for the purpose of achieving what it calls political equality. under this amendment the government could constitutionally redefine political equality and decide who's of speech must be suppressed or should be suppressed or allowed in order to achieve its. isn't this at odds with america's entire history regarding government control of speeches because it is. it gives enormous power to the legislatures, to congress, and to the states. to enforce the law. and i would assume that the courts would be very deferential to anything that those legislatures did. and that being said, while there might be an equal protection or other argument made, i really believe that an amendment of this breath -- breath would
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change substantially and, in and a revocable way, except another constitutional amendment, the whole nature of american society as a speech protecting society. >> another difference is this the men would give the government authority to control not only money but also would cause in kind equivalent like the notion of political equality. this is something completely new. it appears to me the government will be able, if this amendment passes would be able to define this category however it wants and, therefore, control, may be able to control whatever government wants. how far do you think this new dimension of regulation extends? and he expected it would have to be litigation to forget how it
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applies? >> no doubt about that. that would have to be enormous litigation, i mean, look, the reality is, how shall i say this to members of congress here, that if you provide the congress or state legislatures with power, they're likely to use it. and they're likely to use it in this area, in a speech constructively. that's what this whole thing is about. i understand the argument of equality, that more people, few people have wealth. that wealth gives more power, as has been said. but the effect of this amendment would be to embody into our law by changing substantively changing and limiting the first amendment in a way in which, at
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the least, we are going to have years and years of litigation. but i fear worse, i don't mind it that personally, but we are going to have beyond that is a significantly diminished ability to have this sort of ongoing confrontations at length that we have in our electoral process. 2012 election, in my view, was a good example of the system working. there was lots of money out there. there was lots of speech. people heard it, sometimes more than they wanted to, but they heard the views of the party and had a chance to vote. that's the way the system ought to work, and that's threatened by this legislation, this amendment. amendment. >> professor raskin says the supreme court decision in citizens united versus fec eliminate this extra provision
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quote that kept trillions of dollars in corporate while from flowing into federal campaigns, unquote. i think that's a misleading description of the case. as i read it, the citizens united case involved a nonprofit organization not a wealthy for-profit corporation and the case is not involved campaign contributions at all. am i right? >> yes, it did not involve contributions at all, and it left standing the contribution of section. >> have we seen a flood of corporate while the flooding into campaign since the since united decision? >> we have seen a lot of individuals giving money. that's where the big money has come from. we have seen some, an increase in the knot of money from what i called main street rather than wall street. but we have not seen is precisely what was predicted to we have not seen enormous sums,
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let alone trillions of dollars from the biggest companies in america flowing into the electoral process. that just hasn't happened. spent my time is up, mr. chairman. >> senator schumer? i might note there are two roll call votes on the floor, so if you see the movement around her, it's never to try to make the vote to keep the committee hearing continuing. senator schumer. >> thank you, mr. chairman. and i appreciate all the witnesses being here as well as leader reid and leader mcconnell being here as well. i've been sort of, been really surprised at the level of rhetoric that we've heard from senator mcconnell and senator cruz. in fact, i think they want to replace logic with hyperbole. the bottom line is senator mcconnell says how shockingly bad this proposal is. well, i'll tell you what most people, what most americans think is shockingly bad, that our system has become distorted by a few who have a lot of money
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drowning of the voices of the others. when john stuart mills said the answer to restrictions of speech is more speech than he did mean choose. the world didn't take it that within but it exists now. then the senator cruz said americans would gasp if they heard what the democrats are trying to do. i'll tell you what makes the. >> and people gasp, is that a small handful of people can have a huge effect on our political system, and not just offending incumbents. what a canard about it. most of the money that has come from the supe super pacs and for many of these groups are not outing and comes. particularly those on the other side whether they be republican or democrat. he said we should be embarrassed about this amendment. i'll tell you, santa cruz, i'm embarrassed about how our system is distorted by literally now
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billions of dollars coming into this system and disclose, unregulated and unanswered. and senator cruz, maybe he fancies himself to be a constitutional expert. he knows that no amendment absolute. is rhetoric and his over the top rhetoric here makes it seem like if you support this amendment you are against the first amendment. well, i want to ask you, santa cruz, are you against anti-chopper knock of the laws? he's not your but would he be against anti-chopper the laws? doesn't make them against the first amendment? is he an absolutist on the first amendment? if you against the ability to falsely scream, that you should come to see think everyone should be -- if anyone is opposed to that, are they opposed to the whole first amendment and against free speech? libel laws? if you're for libel laws, does that mean you are against first amendment and you are against
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ththe first amendment? as we not. we've always had balancing test for every amendment. so my colleagues on the other side i know don't believe there should be one for the second and. i believe it should butt ugly there's a right to bear arms. i don't like seeing it through a penalty that is neither here nor there. we have always had balancing test for every amendment. they are not absolute. and to say that you cannot have some regulation when billions of dollars cascade into the system, and that's unconstitutional? it's false. it is absolutely false. it is against 100 years of the tradition in this country, and we know what's going on here. i guarantee you that sentiment, wouldn't have flipped his position, particularly on disclosure come if the vast majority of the money, unregulated money coming into
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the system, were from democrats, not republicans. we know that because i remember him being here, the strongest advocate of disclosure. we can't get a republican to be on a single disclosure bill. i'm sure even mr. abrams would agree that disclosure, the supreme court does agree, is not against the first amendment. amendment. >> yes, that's correct spill country might agree that disclosure might be salutary even if you're not for limiting the amount of money that could be spent. would you agree with that? >> i think some of disclosure would be salutary, yes. >> so here's what, i mean, to say that when it comes to money there should be no balancing test but when it comes to other parts of this amendment and other amendments there should be a balancing test, is logically false, demonstrably false. and all the rhetoric, the overheated rhetoric, the hyperbole that we heard from senator cruz just defies logic,
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defies constitutional traditions. and it's not going to make us back down. i don't believe that the brothers are being denied their first amendment writes for would be under any legislation this congress would pass. i don't believe it is the same -- koch brothers. exacta part constitution, same ideas that we hold in free speech to get up on a soapbox to make a speech or to publish a broadside or a newspaper as it is to put the 11,427th add on the air. in fact, to make sure you buy all the available at space on the air so your opponent can't get a word in. i don't believe that's in the spirit of free speech. not just today, but when james madison, thomas jefferson and our great, great founders, most brilliant group of men ever assembled in my opinion, people,
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although they were just man, i wish there were some women there, i don't think this is -- i think if thomas jefferson were looking down, the author of the bill of rights on what's being proposed here, he would agree with it. he would agree that the first amendment cannot be absolute. he would agree that to keep a democracy going, you cannot have a handful of a few who are so wealthy that they can influence the process and drown out the voices of the others to any of us who would run for office and face with these super pacs knows, yes, you can get on your soapbox industry but a leaflet and answered, but in the way our political system works, you don't have a choice. so i'd like to get back to a fact-based, history-based debate on this measure. and not this overheated rhetoric that if you're for this constitutional amendment your against the first amendment. the first amendment has always,
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always, always had a balancing test. it did then. it does now. if there was ever a balance that is needed, it is to restore some semblance of one person one vote, some equality that the founding fathers sought in our political system. i've gone over my time because i was a little bit excited. [laughter] >> okay. they're asking us to take a brief recess, or i will miss the boat, which will be monumental. so we will return very soon when senator durbin returned. thank you very much. we are in recess. [inaudible conversations]
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[inaudible conversations] apo >> my apologies for what we're facing a, but we are trying to get two votes in and keep v the committee active. and so senator whitehouse has already voted on the first amendment. i were recognize him at this point.hairs, so if you see the musical chairs, it's an effort to keepi two thonings going at once. senator whitehouse spent we can indeed walk and chewal gum.
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nice to have you all here. a i appreciate this, and i appreciate the lively debate that has taken place. i think the debate about the first amendment and the lurid descriptions of how this is thes ha first time in history congress has tried to amend the first amendment does overlook a rather signif significant fact in the room. indeed, the elephant in the room, which is that five conservative activists sittingis on a united states supreme coura for the first time decided thatt unlimited spending in the elections was a-ok. and in doing so they departed dramatically from the american people. recent polling shows the court in unprecedented bad odor with the american people as a result of that. the most damning polling
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information was from a recent mellman poll that showed by 91, by 91 -- americans believed -- l by 9-1, favor corporations over individual. i would suggest is plenty of evidence in thet supreme courts recent record, particularly the record of 5-4 decisions driven by the right wing activists to justify that concerned. i don't think yourn get my 9-1 t americans that the sun rises in the east. so when they're concerned that this court will favor corporations over individuals in that kind of number, i think that's a real warning shot across the bow of this court that they need to stop lettingsd to findts and start trying to find consensus and start trying to rebuild this.if so if you own it the fact that five activist conservatives for the first time ticked downco
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hundreds of years of controls over election spending and unleash corporations which aren't even mentioned in the constitution or the bill of rights to spend unlimited lead in elections, and you are omitting a relatively salient fact from the discussion. and i think affected him at the heart of this discussion. iseult we are trying to do is repair an erroneous decision by the supreme court, a decision that is likely to end up in a -- an errone category of lochner and plessy f as really embarrassing moment in history of a court. let me make one additional point and then i'll ask anybody who wishes to comment. .1 thing when trying to fix arex court the kind of went berserk by a narrow five conservative judge common -- margin and it's a tim massad benefit to the corporate interest that in manyn
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cases actually back to the judge didn't on the point. t the second is that the decisiony overlooked some very important factor. personal makeup focuses of the transparency totally wrong andad have admitted that they can got, wrong but it's undeniable that they got it totally wrong, because it is totally untrained spent. dashing untrained spent.her iman another important thing theyt amctlook is that there is i think i'm correct in this, mr. abrams, there's a first amendment limit in this area a that allows us to protect thet electoral process against fraud. and against corruption. that's well established first>> amendment doctrine, is it not? >> yes. >> in order to get around thatge little problem on the way to unlimited corporate spending, they had to pretend thatto unlimited corporate spending
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couldn't, not just might not are probably wouldn't, couldn'tn in create any risk of corruption ie campaigned. because if they did, which itioy obviously does, then congress would have the right and ability unde trgh the first amendment, r the first amendment to legislatg in this area. and the thing that as aa prosecutor i've noticed and it's me, senator mccain and i wrote a brief together to the supreme court to methat mad precisely this point, so it's a bipartisan point, if a corporation is allowed to spend unlimited money, particularly if it's allowed to do it is allowe anonymously, guess what? it's allowed by been to threaten unlimi promise to spend unlimiteted money. and all the safeguards that the supreme court said were going to be there about seeing the ads up on the tv and knowing who was behind them and having it add to the public debate falls to asheg
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when you're talking about a goia corporate lobbyist going into a member of congress and saying,te here's the ad we're going to aro miay. going to put $5 we're going to put $5 billion behind it in your district, lsu vote right. and so the power is the power tp threaten and that power to threaten is the power tothat corrupt, and that's the nexus think we have to remember, and r will yield back my, time. >> professor, do you care to to comment? >> thank you very much, senator whitehouse. ld that that you'd like to make. one is that the citizens united decision over through essentially two centuries of understanding of what a or is.ationf go back to 1890, chief justice john marshall, the great conservative justice, said that a corporation is an artificial entity, invisible, intangible existing only in concentration and law and possessing only theg right that the state legislaturo
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confers upon it through the charter. because of that, for more than half a century we have forbidden corporation -- fa which is also the thending understanding of the founding fathers, correct? >> they were on an extreme short leash and you can find quotations from thomas jefferson is if we got to keep him on ale. short leashje because something that justice white ended up thing might happen, justice l, white said the state has create eer corporation and the state nn not permit its own creation to consume it. but, of course, they've made that the law in citizens united. but in the austin v. michigan chamber of commerce case and the supr mcconnell decisions the supreme court said of courseem the can' fvernment can keep corporate money from flowing into tili political campaigns on an independent expenditure basis, because this is money that's ins therees for economic purposes.th the reason whye mcdonald has billions of dollars is because you eat their hamburgers, not because you agree with their of politics.urgers, nobe
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so thurgood marshall noted that there was a distinct corruptingr affect in taking that money a symbol for economic purposes through lots of state conferred bandages, perpetual license, limited liebowitz shareholders, thbled treatment of the assets of theis country. this goes off without for two centuries, this understanding of why the corporations got to be conf confined to the economic realm. the court did say, i wish senator hatch was to do because he said that i was somehow some unfair in taking a case it was just about a not-for-profit use of movie and saying that it applies to all of the private corporations in america. i agree it's in there but it not wasn't my decision. that was the decision of the supreme court. when the case came to thee camet supreme court there was a simply claim made by the citizens, whih united group which i think the' should have wo one on. it was a statutory claim. they said we have a pay-per-view pay on demand movie that we're putting up, it's not like a ad 30-second attack at inverness to
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see. we don't think that comes within the prohibition of of mccain-feingold. they could have one and they should have one oney that point. they could win because even if r you counterintuitively viewed iy as a tv ad, 50,000 people with the fantasy.n it. they would've been lucky to have 500 people watch their movie. so there were lots of statutory ways to solve this case.rts, chief justice roberts who said he was committed to judicial mim minimalism and the candidate of constitutional avoidance, a central principle of constitutional adjudication, iich is you don't reach aconstl constitutional issue if there'su a better statutory way coming out in the same way.onal they destroyed the canon of constitutional avoidance for the purpose of citizens united in that case. they rushed over five giveaways they could've found for the not-for-profit groups in order to give the parties the commanda to go back and read argueckd the case based on all corporationsti everywhere at all times. so when the supreme court came
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back and said all corporations t have a first amendment right to spend money in a pomeliintics, t was way beyond what they were being asked to do originally anw it depended on weak argument and re- briefing indicates. let me say one other thing, which is a series of questions have been posed to the other otr side about to the have an absolutist perspective on the first amendment in terms of childctin pornography and libeld defamation and so on? i would be curious of mr. evans take on that but i think there s are more direct qutiestions that need to be asked because what wn see is a tremendous momentum on the court and the people bringing these cases to strike of all campaign finance law,inga including theck tillman act goig back to 1907. i saw an interview withmr. ab mr. abramsra what he agreed thai contribution limit should be given to i think he would take the position since contribution limits should be lifted that corporations can also give the money directly to candidate, campaigned, to abolish a century of practice of saying there's ae
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wall of separation betweenmpaig. corporate contribution money and comptel political campaigns. what we are facing is the complete wipeout of campaign finance law if they have thef ti courage of the conviction. if santa cruz is right which ist money is just speech, then you have to let it flow entirely. i be curious at what point basee onch? >> mr. abrams? >> these issues have been with us a long time. in the court didn't make this stufh up. in citizens united. harry truman vetoed in 1937 thae taft-hartley bill which was the first bill that that impose limits on expenditures. he vetoed it and said that the reason for be doing it was thath it violated the first amendment. the very sort of issue thatyou'n you'rest constitutional amendmet onuld be passing on.constituti the constitutional amendment that is before you is one which
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would not just reverse as it were citizens united, at the buckley case as well. we a so we are going back and we're not jus' talking about conservative jurists we're talking about justice brennan, we're talking about justice marshall, talking about justice stewart, all of them a -- >> some of them signed off on cizens uni citizens united? >> no, but all of them signed off on the proposition that independent expenditures could not be limited to that's what buckley wasot about.ns citizens united wasn't aboutt contributions. citizens united moved from buckley which dealt with independent expenditures to the independent expenditures ofo corporations and unions by theia way who have yet to bend mentiod here today. but my point is simply thathas a there's been a philosophical disagreement about this for mang years with many justices on the supreme court taking different positions. so that this is, i really do not
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think --ough i >> but through it all, through it all, the loss of the united states have limitedtions. contributions in federal elections. >> and they still do. >> but in very important ways they don't dig the idea that they citizens united didn't change anything runs contrary to everybody's experience who isce. involved in politics. we see all about is how we ged an changed anything but we just can't say it's part of an ongoing debate.ngoing debate. it's a huge inflection point in the way in which democracy operates in this country. lot the sue super pacs out there. >> if i could comment briefly on that issue. i'm an attorney but obviously i'm not an expert on first amendment free speech issues but i can say that really as a unit has practical reality, citizens united has profoundly changed thero landscape. i look at this recent may primary involving our state supreme court justice, hudson.
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these entities have gone intheyh there with their dark money, spent over $1 million, to disproportionate impact the outcome of that race, to taint the supreme court justice anyway that was unlike anything we hav. ever seen. the on think it will take is one afte race after another race after anotherr race.rol in north carolina for control of the supreme court is at stake right and.ring cou why is it a very significant issue? because these laws have been enacted in our state that superior court justice our unconstitutional ultimate end up there. if you can use the dark money funds toif go in there and start changing the balance on a supreme court in our state, it can be done in any state, should debate reason limitations in my mind is absolute imperative thav proport. otherwise it is this proportional impact who come from millionaires and billionaires who control the way decisions are made through our legislatures and our courts,
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we're opening up the floodgates to change that will have a very negative impact on our political process and the rights ofth. individuals. >> i'm going to recognizecruz. senator cruz it i think senator hatch has already asked. i will ask santa cruz and ask senator franken if he will come up and preside. >> thank you, mr. chairman. at the outset i'd like to say io understand that in my absence, senator schumer very kindly gave a lecture on civility and encouraged me not to go over the top, while he then in the samehm breath accused me of supporting child pornography. so i appreciate thatn in senoril demonstration in senatorial restraint from the senior senator from new york. let me say to the members of this t panel, welcome, thank you for joining us.
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let me in particular welcome floyd abrams. mr. abrams, you have been a line of the first amendment. >> thank you. >> and i've admired your career pretty much all my life. the passion with which you have defended the first amendment against assaults from members of your own party, and pretty much anyone f else. so i appreciate your being hereh i do wish there were democratic senators willing to defend the first amendment.mend. in our history democrats have been willing to do that, and we're in a strange point in timm when democrats abandoned the first amendment, and, indeed,t s proposed repealing it there i want toe rewa address three cans that are put forth in support oi this constitutional amendment. number one, this isal all about nefarious billionaires.. it's interesting, if you look at the openin secrets website, whih
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nonpartisansans a group, the top 16 donors to campaigns from 1989-2014, 100%hm of them support predominantlye. democrats who are on the fence. the top three donors are active blue, which is spent over $102 million, american federation of state county and meniscal employers which has been over $61 million the national education association which has spent over $58 million. there's a pattern in politics where when governments try to take the liberty of the citizens away they distract them with shiny objects. we have seen the majority leader repeatedly slandering two kochate citizens, the
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